Can a wife file a disability application for her husband?

Question: I have a close friend whose husband was convicted of a felony in Ohio. After his 3 and 1/2 year sentence was completed, he moved to South Carolina to live with his parents. A few months ago he was the victim of an assault, which left him unable to work. My friend and he are still legally married, and have a 12-year-old daughter together. She has never received child support or SSDI benefits. My question is, can my friend begin the application process for SSDI herself if he is not mentally capable?

Answer: Social Security does allow an individual who is primarily responsible for caring for a mentally disabled person to file for benefits in some circumstances. But it sounds like your friend, while still married, is not living with or taking care of her husband, so she will not be allowed to file for disability benefits on his behalf. However, your friend’s husband’s parents may be able to file for benefits, if your friend can convince them to.

Social Security policy does encourage disability applicants themselves to apply for benefits and sign the application in most cases. But if a person with a mental disability does not understand the meaning of filing for benefits, or has been adjudged mentally incompetent, the person’s primary caretaker may file an application on the person’s behalf.

In deciding whether the person can understand what it means to file for disability benefits, Social Security will consider whether the person is incapable of reasoning properly, has impaired judgment, or is unable to communicate with others. But if the person is able to agree to have someone else file for benefits, Social Security will find that the person is capable of understanding the meaning of filing for benefits and will require that person to sign the application. This is not to say that your friend’s husband’s parents could not assist him with the application, but your friend’s husband would have to sign the application himself in this situation.

If your friend’s husband’s parents agree to file a disability application on his behalf, they might have to submit a statement to Social Security saying that they are the parents of the disability applicant and they are currently caring for him in their home. Social Security would also send a form to your friend’s husband’s doctor to fill out, asking the doctor whether the disability applicant can understand the meaning of filing for benefits. If the doctor answers no, Social Security will notify the disability applicant that a claim has been filed and allow the applicant 10 days to protest the application.

Keep in mind that whoever files the application will have to have a good deal of knowledge about which doctors the applicant has seen and when, along with their contact information, so that Social Security can request the applicant’s medical records. The person filling out the application should also know the applicant’s diagnoses and prognoses, how the applicant’s diminished mental capacity affects his activities of daily living and makes it impossible for him to work, the mental treatments that have been attempted and the medications that have been prescribed, and whether the applicant is complying with the treatment and taking the medication as instructed.

Finally, know that while Social Security will allow a court-appointed guardian to file an application on someone else’s behalf, a person with a power of attorney cannot file an application on someone else’s behalf.

If I recover after surgery, can I still get disability benefits for the two+ years I couldn’t work?

Question: I first applied for Social Security disability in June of 2012. I had a hearing in January 2014. The judge ordered a second hearing scheduled in July 2014. It was cancelled because the judge was unavailable. It is now scheduled for October 2014. I am scheduled for surgery in September 2014. If the surgery is successful obviously I won’t be eligible for disability. Is there any way to petition for the backpay only?

Answer: Yes, you can receive Social Security disability benefits for what’s called a “closed period.” If, at your October 2014 hearing, the administrative law judge (ALJ) finds that you are able to return to work, but that you were disabled before your surgery, you can still get backpay from the beginning of your disability entitlement date (I’ll clarify this below) until the day you are physically able to return to work.

You do not need to file a separate petition for a closed period. While some applicants apply for a closed period of benefits, most of the time, applicants apply for ongoing disability benefits. If a judge finds an applicant was disabled but is no longer, Social Security will simply award the applicant with a closed period of benefits.

Some experts say that’s it’s easier to qualify for a closed period of benefits, since Social Security isn’t committing to pay you benefits for an open-ended period of time. If your surgery is successful, you may want to talk to a disability lawyer about whether it makes sense to inform the judge that you are seeking benefits for a closed period only.

Your disability entitlement date depends on whether you qualify for SSI or SSDI (Social Security disability insurance). If your application was for SSI, you would be entitled to be paid for your entire period of disability – from the month following your application date to the date you are able to return to work. If you applied for SSDI, you would be paid only for five months following the onset of your disability until you’re able to return to work (due to SSDI’s five-month waiting period). Note your entitlement date can be no earlier than one year before your application date.

To learn more about closed periods, see my article on closed periods of disability.

How will getting married affect my SSI payments?

Question: I’m getting married and am over 60 years old. How will this affect my SSI payments? My husband-to-be is 66 years old and is on Social Security disability and has retirement benefits of less than $500 a month.

Answer: If you get married while receiving SSI, your payment is likely to be reduced because of your husband’s income. Why? Because most of your husband’s Social Security income will be “deemed” to belong to you. Social Security uses a complex formula to come up with what your new SSI payment would be – I’ll show you how it works.

First, know that anytime a spouse’s income is more than $361 per month, that income is subject to deeming. ($361 is the amount that Social Security presumes is necessary for your spouse’s own food and shelter needs, believe it or not.) If you have a minor or disabled child, another $361 will be “saved” for that child, meaning your spouse’s income could be as much as $721  per month without any income being deemed to you. But you didn’t mentioned having an adult disabled child at home, so I assume it would just be you and your husband living together after you’re married, making your husband-to-be’s income subject to deeming.

To figure out what your new SSI payment would be, you would take your husband-to-be’s income and add it to any income you get each month (you didn’t mention whether you have any income beyond SSI, so I’ll assume not). Let’s say your joint income is $500, since you mentioned your husband-to-be’s Social Security check is around $500 (I assume your husband’s disability payments have recently converted to retirement payments, since you can’t receive Social Security disability payments after full retirement age). You then subtract $20 from that amount, and what’s left is the spousal income that is deemed to you ($480).

You then subtract $480 from the SSI income limit for a couple (not for an individual) to come up with your monthly benefit. The SSI income limit (and monthly benefit rate) for a couple is $1,082 in 2014. So after subtracting $480, the $602 remainder is what your new monthly benefit would be. This is less than the $721 SSI benefit that you may have been receiving ($721 is the standard federal benefit amount). Note that these calculations would change if you were receiving more money because your state adds a state supplement to the SSI payment.

Or, in case your husband-to-be has income besides Social Security (you didn’t say), your SSI payment would be reduced even more. For instance, if your husband-to-be also was receiving $300 from another source (not counting any money from an IRA or company pension), you would have to subtract that from the couple’s income limit as well, leaving you with an SSI payment of only $302. If your husband-to-be has other unearned income of more than about $600, your SSI payment would probably be eliminated altogether.

Why can’t I get emergency disability payments from Social Security?

Question: Why would Social Security Administration put information on their site about emergency payments if they’re not actually available? My lawyer says I can’t get them and I shouldn’t read this stuff. I suffer from major depression, carpel tunnel, and polyarthritis among other health issues. I’ve been waiting eight months waiting for a disability hearing date.

I am being foreclosed on and I don’t even have a hearing date yet, to negotiate me being allowed to make modified payments to the mortgage company. I was also not approved for a dire need situation even though SSA was sent a foreclosure proceedings letter from the mortgage company. All this just makes the major depression worse, now dealing with homelessness with 3 children.

Answer: I’m so sorry to hear of your struggles. Unfortunately Social Security makes emergency payments to disability applicants only under some very specific circumstances. First, only SSI applicants who are experiencing extreme hardship qualify for emergency payments. If you qualify only for Social Security disability insurance (SSDI) benefits, you can’t receive emergency payments. But it sounds like your income is low and you’ve exhausted your assets, so you will like qualify for SSI.

Second, only those who qualify for presumptive disability benefits are eligible for emergency payments. Presumptive disability benefits are available only for a few specific disabilities that are so severe that Social Security can almost assume you’ll qualify for disability benefits, based on your initial Social Security interview or application alone.

Some illnesses or conditions that often qualify for presumptive disability payments are AIDs, ALS, Down syndrome, amputation of the leg at the hip, total blindness, total deafness, stroke, and severe intellectual disability. Depression, arthritis, and carpel tunnel syndrome, even in combination, will not qualify for presumptive disability payments or emergency payments, though it never hurts to ask when you first apply. Likewise with a dire need letter, which can be helpful in moving up a hearing date, though dire need letters seldom work, as you saw yourself.

Most states do offer interim assistance for disability applicants for those who meet public assistance criteria and are severely disabled. Read more about this in Nolo’s article on state interim assistance and other government assistance.

It sounds like your lawyer didn’t want to explain why you wouldn’t qualify for emergency payments and isn’t interested in helping you learn about disability benefits on your own – or at the least, doesn’t want you to misunderstand information put out by Social Security. If you want an easy-to-understand guide to disability benefits, see if your library has Nolo’s Guide to Social Security Disability, which explains the ins and outs of the process.

I have CHF, bradycardia, hypertension, diabetes, high cholesterol, acid reflux, and sleep apnea; can I get disability?

Question: I had a heart attack in November 2012 and I went back to work after being told I needed a pacemaker. In March of 2013, my heart rate went to 40 and I was hospitalized for a few days and then sent home. It did it again in June and […] they took me to surgery and gave me a pacemaker. The cardiologist says my bottom chamber was blocked. I was diagnosed with CHF, bradycardia, hypertension, diabetes, high cholesterol, acid reflux, and sleep apnea. My blood pressure will not stay stable – it’s been like that for years — my doctor says my blood pressure was controlling my heart. I am taking Carvedilol 2×day, Lisinopril-Hctz, Potassium, Norvas, and Nexium. I can’t work anymore; can I file for disability?

Answer: If your pacemaker implant was successful, it may not help you much in getting disability. (See my earlier blog post on pacemakers and disability for more information.) In general, Social Security is less interested in diagnoses and more interested in how and your day-to-day functioning is limited. You didn’t mention how you are actually limited in functioning, and the only way to get disability for heart failure without proving that your limitations prevent you from doing any job is to meet Social Security’s disability listing for CHF. If you’ve had three (or more) episodes of acute congestive heart failure over the past year that required extended emergency room treatment or hospitalization, Social Security should grant you disability benefits for meeting the CHF listing without even needing to look at whether your daily functioning is limited. Having failed an exercise stress test can help you meet this listing as well.

But, assuming you haven’t been hospitalized for CHF since your pacemaker implant, you’re more likely to get disability benefits by proving to Social Security that your activities are so limited that there isn’t any work you can do. Ask your doctor what New York Heart Association (NYHA) Functional Classification you fall under: Class I, II, III, or IV. (Class I patients have few symptoms and no limitation in ordinary physical activity while Class IV patients have severe limitations and experience symptoms even while resting). This will give you an idea where you stand, as far as the severity of your limitations. Social Security is more likely to find Class III and IV patients as unable to work due to the severity of their symptoms.

But the way to prove to Social Security that your limitations are too severe for you to work a full-time job is not with your NYHA class but by getting your cardiologist to fill out a functional capacity form saying what you are not able or allowed to do (such as not being able to walk for more than one hour per day or not being able to lift more than 25 pounds) as well as what you are capable of doing (such as being able to sit upright for six hours to eight hours per day).

If your doctor’s form or medical records do prove that you have severe limitations or restrictions, this limits the number of jobs Social Security can say you are able to do, making it harder for Social Security to find you “not disabled.” But if Social Security finds you can do sedentary work (a desk job), you won’t be found disabled unless you don’t have the skills to do sedentary work and you’re over 50 (and you can’t return to your previous work because of your limitations or doctor’s restrictions). Social Security also has to consider how the combined effect of all of your conditions limit your abilities, so make sure you have documentation of all of your conditions when you apply.

Social Security has rejected plenty of applicants who have pacemakers, CHF, high blood pressure, diabetes, and other conditions, so you may want to consult a Social Security disability attorney for help in getting disability benefits.

Can I get disabled widow’s benefits?

Question: My husband of thirty five years died at age 65. He was collecting Social Security. I’m 58, so I’m not eligible for retirement yet, but I can no longer work due to a bad hip and back problems. Someone told me I could get disabled widow’s benefits?

Answer: As long as you became disabled within seven years of your husband’s death and you fit Social Security’s definition of disabled, you should be able to get disabled widow’s benefits (DWB). Disabled widowers receive 71.5% of their spouses’ primary insurance amount, but you may receive less since it sounds like your husband was collecting early retirement benefits.

To get benefits before age 60, you have to apply for disabled widow’s benefits and prove to Social Security that you have a disability that prevents you from working any full-time job, for at least a year. You may want to read Nolo’s articles on disability for back problems and disability for hip problems to see if you would qualify as disabled.

Once you turn 60, your benefits would convert to “aged widow’s benefits,” which are like widow’s retirement benefits. These benefits are also sometimes referred to as surviving spouse benefits or spousal survivor benefits.

Can SSI force someone to apply for early retirement benefits?

Question: My brother just turned 62 and has been on SSI disability for 19 years. He receives $650 a month. Social Security says he has to apply for “early retirement” benefits now and cannot wait until he reaches “full retirement” at age 66. His early retirement benefits will only be $500 a month. Is this accurate? They did not cite any statute.

Answer: It sounds like your brother didn’t qualify for Social Security disability benefits but does qualify for retirement benefits. This can happen when someone didn’t work recently enough in relation to when they filed for disability, but they did work enough years in the past to qualify for a small retirement benefit. In this case, the applicant is stuck with collecting only SSI disability until they turn 62. After they turn 62, they becomes eligible for Social Security retirement.

I’m afraid Social Security is right. One requirement of continuing to receive SSI benefits is that the SSI recipient apply for any other cash benefits that are available, and this includes Social Security retirement benefits. So your brother will have to start collecting his early retirement benefit, even though his retirement benefit would be larger if he were able to wait until full retirement age.

The good news is that he’ll be able to receive both Social Security retirement and SSI at the same time, so his overall monthly benefit won’t decrease. He should receive $500 as the retirement benefit and $150 as the SSI benefit.

A note for those who are receiving both SSI and Social Security disability insurance (SSDI): When these “dual beneficiaries” turn 62, they will continue to receive SSDI until full retirement age, at which time the SSDI will convert to Social Security retirement. (The SSDI and retirement benefit should be the same amount.) In other words, SSDI recipients aren’t forced to apply for early retirement benefits, so their lifetime retirement benefit is not decreased.

If I move to a state that doesn’t recognize same-sex marriage, will I lose my Social Security benefits?

Question: I heard Social Security finally changed the rules regarding benefits for same-sex couples. If I was married in a recognition state in the Northeast and then I retire to Florida, a non-recognition state, will my Social Security spousal benefits be cut off?

Answer: It depends. If you were already receiving benefits before you moved, you should be okay. The Justice Department has clarified this week what happens if a married couple moves to a state that doesn’t recognize gay marriage. From now on, when a claimant applies for spousal benefits, the Social Security Administration will evaluate his or her eligibility based on the state in which she lives during the application process, and will not later reassess eligibility if the person moves. Here’s some background on how Social Security decides eligibility.

Whether a spouse is eligible for Social Security benefits on her spouse’s earnings record depends on whether the state in which the couple lives recognizes the couple’s marriage as valid. Despite a 2013 Supreme Court ruling that overturned part of the Defense of Marriage Act (DOMA), a federal Social Security statute still says spouses are considered married when the state in which they live considers them married.

The states that now recognize same-sex spouses as legally married and eligible for Social Security dependent and survivors benefits are California, Connecticut, Delaware, Hawaii, Illinois, Iowa, Maine, Maryland, Massachusetts, Minnesota, New Hampshire, New Jersey, New Mexico, New York, Oregon, Pennsylvania, Rhode Island, Vermont, Washington, and D.C.

So, for example, if you and your spouse are legally married in New York and you apply for Social Security benefits while living there, and then you move to Florida, a state that doesn’t recognize same-sex marriage, you will continue to receive benefits because you lived in New York when you applied for benefits. This is a bit quirky, because it also means that, if you marry in New York, live there for a while, then move to Florida, and then apply for Social Security benefits, you will be ineligible, because at the time of application you lived in a non-recognition state. Confusing, but that’s the way current law stands.

For more information on the benefits available, see Nolo’s articles on Social Security dependents benefits and Social Security survivors benefits.

How come Social Security didn’t find me disabled under a grid rule?

Question: I recently applied for SSDI and was denied. I sent in over 700 pages of medical records. Social Security did agree that I could no longer return to my past laborious jobs of shipper, receiver, stockroom, etc., but I think they failed to use the grid rules. I am 50 years old. I quit school in 11th grade and later got my GED. I have no skill sets and no formal training for sedentary work, which they said is all I can do now. I told them in records and adult function form that I can only lift 5 pounds and have trouble sitting too long; they ignored that. When I searched the Social Security site and read their grid rules, I found out I should have been found disabled!

Answer:

You may be right about the grid rule, but my guess is that Social Security considered the grid rules and decided that you did not fall into the disabled category. Look at our article on Social Security’s disability grid rules and find the chart for RFCs for sedentary work for 50 year olds. Since you got your GED, you fall under ” High school graduate or more, but no training for direct entry into skilled work.” You will see that, if Social Security agreed you have no skills or no transferable skills, you will be found disabled. BUT, if Social Security found you have skills that could be transferred to another job, you will not be found disabled.

Social Security defines shipping or receiving clerk as a skilled job, because it usually involves clerical work, such as “counting, weighing, or measuring items of incoming and outgoing shipments.” So Social Security probably believes that you have skills that you could use at another type of clerical job where you don’t need to lift anything heavier than a few pounds.

To see if this is the case, you should read the personalized explanation rationale you were sent with your denial notice. It may address the grid rules and why you didn’t fit under a rule(they will probably be called medical-vocational rules).

If the personalized explanation rationale doesn’t cover the medical-vocational rules, you should request your disability file from Social Security, which should include Form SSA-4268: Explanation of Determination, which includes the “technical rationale” that the claims examiner used in making your disability determination. The technical rationale contains more information than the personalized explanation rationale. It should address why Social Security didn’t feel that particular grid rules didn’t apply. Then it will be up to you to argue at your appeal hearing why a certain rule does in fact apply.

For instance, if your actual job didn’t involve any clerical work (in other words, you performed the job of shipping/receiving clerk differently than it is generally performed), then you didn’t gain any job skills, and they can’t be considered transferable. In short, you need to prove that your past work was unskilled to fit into this grid rule (or that the skills you did gain are not transferable). Chances are, you would need the help of a disability lawyer to prove this at your appeal hearing, but you can read our article on proving you don’t have transferable job skills to Social Security to see if you think you could handle it yourself.

Your personalized explanation rationale or technical rationale may also include examples of the sedentary jobs that Social Security says you can do. If so, you can try to prove that your medical limitations prevent you from doing these jobs. For instance, at your hearing you should bring up the fact that your records say you can’t sit for too long. (Try to get an updated medical opinion to support this.) In this case, if your records prove that you can’t even do sedentary work, you must be found disabled. For more information on this argument, see our article on how to get disability benefits if you can’t do sedentary work.

Do I need a lawyer to reapply for disability to get benefits going back to the date of my first application?

Question: I have been battling chronic migraines, chronic daily headaches, depression & anxiety for over a decade. About 18 months ago I finally applied for disability benefits. I was denied. Due to my conditions and frustration, I failed to appeal my denial.
I know it’s too late to appeal, so can I reapply or do I need to get a lawyer? If I can reapply, can I still request benefits from almost two years ago, when I initially applied?

Yes, you can reapply for disability benefits from Social Security by filing a new claim. You can also request that your original claim be reopened when you file the new claim. If you’re successful, Social Security will pay benefits back to the date of your original application, or even up to a year before your original application date if you can prove your disability started that long ago.

You didn’t say when you received the denial from Social Security, but if it was less than 12 months ago, you should have an easy time reopening your claim. You do have to claim that the same medical conditions (or related ones) are disabling and that your disability started before the date of your first claim. In your case, it sounds like that won’t be a problem. But make sure you have medical records that show you suffered from these conditions several years ago and that you’ve also been seeing a psychiatrist or neurologist recently.

If you received the denial more than a year ago, you’ll have a harder time reopening the claim. You’ll have to show that you have “new and material” evidence about the claim (meaning the evidence wasn’t considered in the prior claim and it would have meant an approval of benefits), or that that the prior decision reflects an obvious error. This isn’t an easy standard to meet, and if you request a claim be reopened and the request is denied, you can’t appeal the decision.

So if you were denied over 12 months ago, I would ask a disability lawyer to help you reopen your original application. A disability lawyer will know how to request the prior claim be reopened and how to argue why your evidence is new and material or why there was a clear error in the initial decision. An attorney can also make sure your new claim follows the reopening rules regarding dates and relevance. Of course, if the lawyer doesn’t think your case is likely to win or get reopened, that will save you the time and headache it will take to file a new claim and wait for an answer. In other words, it’s always a good idea to at least do a free consultation with w lawyer. To set up a consultation, you can fill out Nolo’s case evaluation form and a disability lawyer from your area will follow up with you.